HL Deb 13 August 1947 vol 151 cc1396-404

2.48 p.m.

LORD AMMON

My Lords, I beg to move that this House do now adjourn until Tuesday, October 14. I may explain to your Lordships that the reason for this date of October 14, is that that is the date of the normal judicial sitting of the House.

Moved, That this House do now adjourn until October 14.—(Lord Ammon).

THE MARQUESS OF SALISBURY

My Lords, I beg to move as an Amendment to the Motion, to leave out the words "Tuesday, October 14" and insert "Tuesday, September 9." In moving this Amendment I can assure the Government, if they need such an assurance, that we, on this side of the House, are not acting in any Party spirit or with the mere object of causing any embarrassment to the Government. We have, I I think it will be agreed in all parts of the House, taken a moderate and, I hope, a statesmanlike attitude towards the Supplies and Services (Extended Purposes) Act. Although we have protested against the extent of the powers which are given to the Government, especially under Section 1 (1) (c), we have been at pains not to give any legitimate grounds for any charge that we have made it impossible for the Government to use what means they feel desirable to tackle this crisis with which the country is faced.

But there is no doubt that the introduction of this legislation, with the very wide powers which it confers, and at a time when Parliament is separating for the Summer Recess for over two months, has exposed what I may perhaps describe as rather a serious defect in the constitutional machinery of this country, which I think it is for Parliament as far as they can to try to remedy. In the old days, of course, practically all legislation was by Act of Parliament, and Parliament went through every word of every clause of that legislation. In such circumstances there was fully effective protection for the community. But within recent years (and I am not referring merely to the period during which the present Government have been in power) there has been a new development—namely, the growth of delegated legislation. As your Lordships know very well, blanket powers are given to Ministers to make Orders within the limitations of the main Acts and as soon as they are made those Orders come into active operation. It is quite true that under the Constitution they must be laid before Parliament, and, as your Lordships know, either House can pray against them.

That is, of course, some protection when Parliament is sitting, but if Parliament is not sitting Orders may become operative weeks or even months, before Parliament can consider them. I should think that it would be generally agreed by noble Lords in every part of the House, whatever they may feel about this measure which we have so lately been considering, that that is not an entirely satisfactory situation. Indeed, it is a very unsatisfactory situation. It is to meet this new difficulty that we are proposing that, if necessary, this House, at any rate, should meet at convenient intervals during the Recess to examine such Orders.

No doubt the noble and learned Viscount, the Lord Chancellor would point out, if I did not, that in these circumstances this House cannot pray against Orders, because Orders have to be laid before Parliament; and if only one House happens to be in Session they clearly cannot be so laid. In those conditions all the House can do is to examine and discuss them when they come out. That would be, or it might be, a useful function for us to perform. An earlier meeting of this kind, under the existing rather anxious conditions, might have this additional advantage: It might well give opportunity, if such were required, for general discussion of developments in the economic situation since the House last sat; that is, since to-day.

I would not for a moment suggest that we should have a sort of general session of this House, in which every kind and sort of question might be raised—in which there might be debates on foreign affairs. debates on this or debates on that. That, I think, would be entirely inappropriate. The general development in the economic situation would be very closely allied to this Act which has been lately under discussion, and a general discussion of that kind might be quite proper. That is the reason why I am moving this Amendment to the Motion for the Adjournment. It has seemed to us—that is, to those noble Lords whom I represent—that September 9 would be a suitable date for the next meeting of the House. For one thing, it will give almost a month for noble Lords and for the officers of the House to get that rest and refreshment which hey obviously need after the labours of the summer. It will also give time for the Government to initiate such steps as they may think proper to deal with the situation which has been developing.

We on this side of the House fully recognize that, owing to important public duties abroad, it will not be possible for the Lord Chancellor himself, or for the noble Viscount the Leader of the House to be present on September 9. We entirely understand the reasons. No doubt there will be some other members of the Government Front Bench who will be able to officiate in their absence. I believe that the proposal which I am putting will be generally welcomed, both in this House and also outside, as evidence that your Lordships are willing to give what assistance you can to the alleviation of our present troubles, and also as evidence that we are prepared and determined to play our full part in maintaining the authority of Parliament. I beg to move the Amendment.

Amendment moved— Leave out ("October 14") and insert ("September 9").—(The Marquess of Salisbury. )

2.56 p.m.

VISCOUNT SAMUEL

My Lords, noble Lords on these Benches will desire to support the Amendment which has been proposed by the noble Marquess, the Leader of the Opposition. The reasons for this Amendment have been so fully and so ably stated by the noble Marquess that it is unnecessary for me to do more than say that we agree with them and regard them as conclusive. I hope that it is to be made quite clear that, if this House is summoned to meet again on September 9, it will only be for anything more than a formal sitting if some business of urgent importance has arisen meanwhile. The noble Marquess, I am sure, does not intend, and the House does not wish, that we should meet again in order to engage in the discussion of more or less normal business which may happen to have accrued meanwhile. We have had a very long and very arduous Session with a great deal of massive legislation, and I think that members of your Lordships' House, as well as officials, are entitled to a sufficient rest.

Public spirit is a great virtue, and a high sense of Parliamentary duty is greatly to be praised. But like other virtues, that ought not to be carried to extravagant excess. So we may hope that on September 9 it may be necessary only to summon here a quorum of the House, which is, as we know, three members. Three self-sacrificing members of your Lordships' House, preferably those who are accustomed to be in receipt of salaries, should he willing to attend in order to constitute a sitting of the Chamber.

I do not know what attitude the noble and learned Viscount, the Lord Chancellor, will take on this Amendment. I can well understand that the Government would be in some difficulty in either proposing such an Amendment themselves or in formally agreeing to it if similar action is not being taken by the other House. Therefore, it may be that the noble and learned Viscount will view this Amendment without enthusiasm, but I hope the Government, if they do not agree, will at all events acquiesce.

2.59 p.m.

THE LORD CHANCELLOR

My Lords, your Lordships on these Benches are really becoming very revolutionary. I and my Party are old-fashioned Constitutionalists in this matter and I am bound to point out that, so far as I know, this has never been done before. Quite frankly, being an old Constitutionalist, as we all are, I distrust this innovation. I doubt its wisdom. Your Lordships are very anxious to maintain the dignity and prestige of your Lordships' House. Your Lordships must ask yourselves whether the question before the House is likely to achieve that end. If the answer to that question, which you must have formulated yourselves, is in the affirmative, well then, so be it. The noble Viscount who spoke last, the Leader of the Liberal Party, anticipated that though I could not accede, I should acquiesce.

The constitutional position is quite plain. It is for each House (I am reading from Erskine May) to exercise its right to adjourn itself independently of the Crown (which means the Government of the day) and of the other House. That is the constitutional position which I have to advise your Lordships exists. I would, however, like to point out that on August 10, 1914, which was just after the outbreak of the First World War, this House resolved that whenever during the present Session of Parliament the House stands adjourned for more than two days and it appears to the satisfaction of the Lord Chancellor that the public interest requires that the House should meet at any earlier time during such adjournment, the Lord Chancellor may give notice to the Peers that he is to satisfied and thereupon the House shall meet at the time stated in such Notice and transact business as if it had been duly adjourned to that time. Since that date alterations have been made in that Motion. The Chairman of Committees in the House of Lords is now frequently included, together with the Lord Chancellor, and since 1931 the Motion has been so made that the Lord Chancellor or the Chairman of Committees cannot act save after consultation with the Government. In its more modern form, in practice I understand it means that this is done with the approval of the Government. But I would point out that under the 1914 Resolution it was left to the Lord Chancellor to act independently and call your Lordships back if, and only if, in his or their opinion there was some case for so doing.

Frankly, I do not agree with the noble Marquess that the modern tendency of delegated legislation is any justification. When I have read books about "The New Despotism," I have thought that in the interest of historical accuracy it should be stated that that despotism is very old indeed and reached its height in the time of the Tudors. It is quite inaccurate to refer to it as the new despotism—despotism, if you will, but not new. And our ancestors, who did not adopt this course, were fully alive to the danger which the noble Marquess seeks to guard against. While it is of course for this House to decide to what date it will adjourn—and, I should not dream of standing in the way; your Lordships' wishes must be supreme in this matter—it is for the Government to decide what they will do when the House does meet. I am exceedingly sorry that the Leader of the House, Viscount Addison, is away. I am sure the wishes of all the members of this House go with him on his voyage, and I think at his age it shows great pluck and enterprise to undertake the very arduous and difficult task he has undertaken. The noble Lord, Lord Ammon, is going, as your Lordships know, as a Parliamentary delegate to China and he also will not be present. And I, my Lords, am in a difficult position in that I have been asked both by the American and Canadian Bar Associations to go to America. It entails making a very large number of speeches and travelling pretty well over the Continent. Though I have considered in my own mind whether I ought to abandon that project, my own colleagues and those of your Lordships opposite who have been good enough to discuss this with me take the view that I ought to adhere to my decision and to go as the guest of the American and Canadian Bar Associations. I only mention these matters in order to apologize that I and my noble friends will not be able to be here. I have no doubt we shall do all we can to facilitate matters. I hope that your Lordships will understand that so far as the servants of this House are concerned it would be desirable to interfere as little as possible with their holidays, and if we find when the day comes that we are understaffed I am sure your Lordships will forgive it and realize the reason.

With that, would point out that in any event it will not be possible to pray against any Order. You cannot do that. All you can do is to debate an Order, but the question of a Prayer cannot arise. It is therefore no sort of solution of the constitutional problem, if constitutional problem there be, as it is a fact that these Regulations come into force and have effect unless and until a Prayer is passed. A Prayer cannot be under taken when your Lordships meet on September 9. I have pointed these facts out. Your Lordships have told me that you desire to meet again on September g. It is your Lordships' undoubted right to decide to which date you will adjourn, and, conscious as I am that the large majority desire this date, I shall do nothing to try to oppose the proposal. I will acquiesce in the proposal which has been made and we shall learn by experience and see how it works.

3.9 p.m.

VISCOUNT SIMON

My Lords, I would not have intervened had not the noble Viscount in the course of his speech thought fit to point out a matter of historical accuracy. It is no doubt quite true that in the time of Henry VIII a Statute of Proclamation attempted to provide that the King should be able to Issue orders of the nature of laws without Parliamentary authority at all, a very bad precedent and one which we shall certainly not go back to. But it is just as well to remember that though that was true at the beginning of the Tudor period, it certainly was not possible at the end. I recall the answer of the schoolboy who was asked to illustrate the increase in power of the House of Commons during the period of the Tudors. The schoolboy replied that at the end of that period, in the reign of Queen Elizabeth, the House of Commons petitioned the Queen to marry—a thing, he said, which the House of Commons would never lave thought of doing in the reign of Henry VIII. The claim which was undoubtedly made in the period to which my noble and learned friend refers, and was made a little later, led to a very unfortunate incident in the time of Charles I, when he, in his turn, attempted to govern without Parliament.

Surely, the true position is this. I have never sought to state it too absolutely, or in too dogmatic a fashion. The truth is that it has been for a very long time past—in the lifetime of any of us, and going back beyond that—absolutely necessary to have in Statutes provisions that regulations should be made under the Statuses. You could not have an Education Bill, an Unemployment Insurance Bill, or a Factory Bill unless there were all sorts of regulations which were made under them—quite subordinate to them, but absolutely lawful, because the Statutes themselves provide for them. That is to say you give a certain discretion in matters of mere administration to the Department which is administrating the subjects. That is undoubtedly the case. I do not think Mr. Gladstone would have taken any objection to the provisions of the Education Act of 1870, which included provisions for regulations by the Board of Education. But that is quite a different thing—is it not?—from letting us slide into a situation in which more and more what is in effect legislation by regulation takes the place of what ought to be direct Parliamentary decision. It may be that it is inevitable that the cases should increase, because the complication of life increases, and even the most hard-working Parliament cannot manage to sit more than 365 days in a year—and possibly there are some who think that that would be an excessive time!

But there is a fundamental difference between the old idea that purely subordinate matters can be dealt with by regulations which are authorized by Parliament and the idea which is now unquestionably growing up. You may see it in its most emphatic form in some of the previous declarations of, let us say, Sir Stafford Cripps. To say that the moment a Socialist Government get a majority they ought on the first day to pass a Bill to confer on the Government powers to legislate on anything they like, and that after that Parliament should sit as little as possible, is a fundamentally different conception of what Parliament ought to do from the conception under which we have been brought up, and which most of us honestly desire to maintain. It is, therefore, not the case that we are dealing in this Act with cases where there may be just ordinary regulations, such as have been made for a long time past, and made of necessity by every great Department of State—the Home Office, the Board of Trade, the Ministry of Labour, and so on. That is not the case at all. It is recognized not to be the case, because it is admitted that there must be, at least, the possibility of Parliament negativing the regulation at the end, which itself is an admission that such regulations or instruments go beyond the mere detail of provisions for administration.

I venture to think, therefore, that while my noble and learned friend is perfectly right when he says there was a danger of a despotism in the time of Henry VIII, it has been the earnest endeavour of our ancestors to get rid of that danger of despotism; to keep it in bounds, and to make quite certain that it should not grow into something of the nature of a tyranny—government not by Parliament throughout the life of a Parliament, but government by the Executive once it has got its position for five years. That is the distinction. With that distinction in mind, I venture to think that the Amendment which has been put down by my noble friend the Marquess of Salisbury is one which will commend itself to your Lordships.

On Question, Amendment agreed to.

Motion, as amended, agreed to, and ordered accordingly.